Council caves on big dairy consent

Irrigation pivots are being tested at the country’s highest-profile dairy conversion but have authorities done their job? David Williams reports.

The seeds were sown eight years ago, critics say. In 2010, the John Key-led Government sacked Canterbury’s regional councillors over “urgent problems with water management”.

Fast-forward to yesterday and the regional council, Environment Canterbury (ECan) – run by a mixture of Government-appointees and democratically elected councillors – stands accused of giving in to irrigation interests by confirming a dairy company’s resource consent before all conditions have been met.

The irrigation consent granted for Simons Pass Station – a 9700-hectare farm that straddles State Highway 8 just a stone’s throw from Lake Pukaki in the South Island’s Mackenzie Basin – is so sensitive the Mackenzie District Council is now seeking a declaratory judgment from the Environment Court.

ECan’s message yesterday was that Simons Pass Station Ltd has met all its consent conditions except one and that, these days, a dairy farm of that scale wouldn’t get consent in the Mackenzie. But that obscures the council’s permissive attitude, in allowing the company to vary consent conditions, and an eleventh-hour U-turn on ECan’s promise not to let irrigation start without conditions being met.

Doubts and fears sown in 2010 have bloomed into a concern that ECan is putting irrigation interests ahead of the environment.

Court-mediated settlement

Simons Pass, a mixture of freehold and Crown-owned pastoral lease that’s owned by Dunedin accountant Murray Valentine, had its irrigation consent granted by independent commissioners in 2012. But it took until October 2016, and an Environment Court mediation, for it to be confirmed.

The settlement was something of a dead rat to swallow for opponents Forest & Bird and Mackenzie Guardians, which were boosted by tens of thousands of taxpayer dollars from an environmental legal assistance fund. (Other parties to the settlement were Simons Pass, obviously, as well as power companies Genesis Energy and Meridian Energy.)

The environmental groups would have preferred the $100 million-plus development to irrigate 4500 hectares and accommodate up to 15,000 dairy cows to be scrapped. But the trade-off dangled at mediation was for 2554ha to be set aside at Simons Pass as a drylands recovery area, with a set of what seemed like water-tight conditions.

Mackenzie Guardians wrote to ECan’s chief executive Bill Bayfield in January, alleging Simons Pass had breached consent conditions by not providing a baseline survey of plants and native species of lizards, invertebrates and birds within the agreed six months. Two other plans, for landscape management and dryland recovery management, were meant to have been provided within a year.

Bayfield responded in March, at the time an eight-kilometre-long irrigation pipeline being built across public conservation land to Simons Pass hit the headlines. He said because Simons Pass’s irrigation consent hadn’t been “exercised” there was no breach. Time periods for work mandated in the consent were tied to its “commencement”.

Simons Pass provided a baseline survey to ECan in April, but it was subsequently criticised by Mackenzie Guardians’ experts as being inadequate and ECan demanded more information.

Meanwhile, the farm company quietly applied for a consent variation – something ECan granted without consulting the parties to the settlement. Mackenzie Guardians said that appeared to sidestep what had been agreed in court.

The new consent, spotted by Mackenzie Guardians in June, pushed out the timeframes for the baseline survey (17 months from commencement) and the landscape and dryland recovery plans (two years). The problem with that, potentially, was that irrigation could start before this work was completed.

ECan’s chief operating officer Nadeine Dommisse said in July: “The irrigation consents for the Simon’s Pass property have not yet been exercised. There are some pre-conditions (including completing a baseline survey of a number of plant and animal species on the property) that are still being worked through, and that need to be completed before irrigation can start.”

“We’re confident that the mitigating actions the station has taken mean there is no risk of irrigation reaching that area.” – Nadeine Dommisse

Yesterday, ECan made its U-turn public.

It confirmed Simons Pass Station had consents in place from itself and Mackenzie District Council to begin irrigating some of its land. The company had met all conditions except one, ECan said, which was to finish its baseline survey – something that would be completed by the end of summer. Dommisse said in the statement: “We’re confident that the mitigating actions the station has taken mean there is no risk of irrigation reaching that area.”

She told Newsroom yesterday ECan’s legal advice was it couldn’t enforce a breach of consent for the baseline survey not being provided on time. She added Simons Pass had agreed to keep its irrigators at least 50 metres from the dryland recovery area.

Simons Pass has provided ECan with sufficient information, she says, that it’s comfortable with what’s being proposed to fulfil its consent conditions, pending the completion of its baseline survey. ECan is aware of community concern and public expectation about the potential environmental effects. That’s why “we’re monitoring them like a hawk”, she says, and it has employed another full-time compliance staffer in Timaru. (Simons Pass owner Valentine quips: “We’ve offered him accommodation because he’s on our farm all the time.”)

Dommisse says Simons Pass is a “precision farming entity”. “Everything they do they’re monitoring, they’re measuring, it’s a lot of sensor-driven data information," adding: “All I would ask is that organisations in the community judge us on how we’re keeping an eye on the consenting and the monitoring.”

Faced with criticism about its decisions not to enforce consent conditions and to grant consent variations, Dommisse says the wider context is the consents were issued more than five years ago. “The past is the past. The consents were issued. We’re now in a situation where we’re absolutely focusing on ensuring that the conditions are complied with.”

Due process followed by disappointment

Rosalie Snoyink, of the Mackenzie Guardians, says her group could have chosen a different, more combative route under the Resource Management Act (RMA). “But we followed due process, we followed the RMA, and we got reasonable environmental outcomes from the negotiation.”

Despite ECan’s announcement yesterday, Snoyink isn’t sure what has been agreed or what mitigation Simons Pass has offered to protect the dryland recovery area. “It’s very disappointing to have gone through this process and now have the conditions weakened in this way and not enforcing them.”

Mackenzie Guardians received $36,000 from the Ministry for the Environment’s environmental legal assistance fund to help pay for the Simons Pass appeals. Now, Snoyink worries the taxpayer money might be wasted because ECan isn’t doing its job.

“We were simply amazed that hard-fought conditions could just be changed like that, without consulting stakeholders.”

While ECan says Simons Pass has met all conditions except one, Snoyink has concerns over several more. They are: pivots being visible from the state highway (“We don’t think they’ve done that”); public access along the Bullock Track route (“It’s right through the middle of two pivots”); and consultation with stakeholders (“They’ve got a different idea of consultation to us”).

“We’re just disappointed they haven’t stuck to their side of the bargain.”

(Simons Pass owner Valentine says Mackenzie Guardians is entitled to its opinion but it “absolutely” has met consent conditions. “Of course we have, otherwise why would ECan put out a press release to say we had?”)

Forest & Bird takes a more pragmatic line. General counsel Peter Anderson, of Christchurch, says it’s important consent conditions are complied with. “But we understand that ECan’s reached a view that there’s limited environmental impact from this particular non-compliance.”

Last month, Radio NZ reported ECan hadn’t prosecuted or fined the company behind an American-style feedlot near Ashburton, despite it being “technically non-compliant” with its consent conditions for months. The council’s 2017-18 compliance report shows its preference for a soft approach to breaches. It responded with “advice and education” on 606 occasions and issued 201 written warnings, compared with 51 infringement notices, 39 abatement notices and a single completed prosecution.

Greenpeace sustainable agricultural campaigner Gen Toop accuses ECan of being “wholly inept” and bending over backwards for agricultural industries. That’s unsurprising, she says, given the previous Government sacked councillors over water management in 2010. But it should be a cause of alarm and concern for the Labour-led Government.

“We want to see unambiguous, direct and strong legislation out of the Government so that regulators like ECan can’t go around and the dairy industry can’t pollute without any repercussions.”

The Simons Pass dairy development seen from the air, in March. Photo: DOC

Simons Pass’s dairy shed has been built and milk from the 840 cows is being collected. Eleven pivot irrigators are in place and the water is on. Valentine says: “We’ve been testing it for the last three days.”

ECan signing off consent conditions is just one aspect of setting up the farm, he says. There’s still an enormous amount of work to do, including fencing and building pivot bridges. He says the fence around the dryland recovery area extends for about 40 kilometres. “Unless water starts to fall upwards, it will be very hard to see how the water will have any effect on it.”

(As part of its irrigation consent, Simons Pass Station has to spend at least $100,000 a year implementing a dryland recovery management plan. Dommisse says the conditions imposed by the Environment Court – before ECan agreed the variations – were “probably the most onerous sets of conditions for a farm of this type anywhere in New Zealand”.)

Valentine seems agitated his development has garnered so much public interest, and has become a lightning rod for environmental activists. “There’s been no other press release about the other 15 people who have started their irrigation consents this year.”

He’s having to deal with conflicting advice from councils and spurious claims by opponents, he says. “But I’ve just refused to let it slow us down. We’ve got to get the irrigation going, that’s the thing, and then we can start trying to deal with the nonsense.”

Off to court

Another key player in the Simons Pass debate is the Mackenzie District Council, which is yet to approve all the station’s remaining irrigation consents. (Greenpeace says the tiny council might be all that stands in the way of the massive dairy conversion.)

Karina Morrow, the Mackenzie council’s group manager of regulations, confirms it is seeking a declaratory judgment from the Environment Court over irrigation and other activities at Simons Pass. The council wants the court to rule whether its plan change 13 rules, which take a tougher line on agricultural intensification, apply to the Simons Pass ECan irrigation consent, which would determine if it’s a “controlled” or “discretionary” activity.

Morrow says it wants the court’s direction to ensure it’s applying the rules correctly. Valentine, on the other hand, says it’s the council’s attempt to relitigate its consent.

The Mackenzie council is also investigating a potential non-compliance issue at Simons Pass. We first asked Mackenzie’s council about this in May. It confirmed it was investigating a potential non-compliance, but has consistently refused to provide details.

Morrow said last month: “This matter is still under investigation with particular consideration being given to the interpretation of district plan rules. I am unable to comment any further at this stage due to legal privilege.”

“What is the point of the Environment Court process if conditions are not enforced by the consent authority?” – Rosalie Snoyink

ECan’s Dommisse stresses things are different now, compared to when Simons Pass’s irrigation consents were originally granted.

Appeals to the council’s so-called plan change five, which ushers in tougher water rules, are now resolved and it should be operative within months. Legislation governing freshwater use has also changed, leading to a decline in irrigation applications.

There’s also more coordination between ECan, Land Information New Zealand, the Department of Conservation and the Mackenzie and Waitaki councils to better protect the environment. Responding to greater community concern, all agencies are giving environmental concerns in the Mackenzie greater scrutiny, she says.

“I feel the majority of the community concern is coming from decisions made in the past, whereas environmental protections in place now are quite different.”

But ECan’s critics – undeterred by how advanced the Simons Pass dairy conversion is – say plans, rules and consents are only effective if they’re enforced.

Greenpeace’s Toop says the council’s setting a bad precedent by not forcing Simons Pass to complete its baseline survey; that it’s throwing “the RMA out the window”. Snoyink, of Mackenzie Guardians, concludes: “What is the point of the Environment Court process if conditions are not enforced by the consent authority?”

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